Employment Cases Update

Butcher v Surrey County Council UKEAT/0022/19/LA

Date published: 25/03/2020

Appeal against the ET’s decision that the Claimant had resigned from her employment. Appeal allowed.

The Claimant, who worked for the Respondent, line-managed a colleague. Following longstanding difficulties in the relationship with the colleague, the Claimant resigned on three months' notice. Her evidence was that the Respondent asked her to consider staying in employment, and she agreed that her staying would be conditional on the Respondent dealing with the colleague, although those discussions were never finalised. The Claimant worked beyond her termination date, and the Respondent kept paying her. Two weeks later, the Respondent decided that no retraction of the Claimant's resignation had been agreed to, and that a new termination date should be set.

The ET found that the Claimant had unequivocally resigned on three months' notice; that the Claimant accepted that there was no agreement to withdraw or pause the notice, although there were discussions about it; and that the Respondent had simply failed to complete the necessary paperwork on the Claimant's resignation. The Claimant appealed on the grounds that the ET erred (1) in its approach to what was required for there to be a withdrawal of notice on resignation (namely that the resignation could only be withdrawn where the requisite agreement was initiated by the employee), (2) in requiring a resignation to be withdrawn by express words only, rather than by conduct or implication, and (3) in focusing on the reasons for the employer's conduct and thus its subjective intent, rather than the effect that its conduct could have had on the Claimant.

The EAT held that (1) the ET failed to properly consider relevant circumstances, namely that the Respondent had invited the Claimant to reconsider her resignation and to stay in employment, (2) the ET did not consider whether, by the Respondent's conduct, there had in fact been an implied agreement that the resignation could be withdrawn, and (3) the ET focused only on selective pieces of evidence regarding the Respondent's actions, to the exclusion of other relevant evidence. Accordingly, the appeal would be allowed and the matter remitted to a fresh ET.

Read the full text of the judgment on BAILII or download the file by clicking the link below.